James Bond out on bond
Espionage and the rule of law
A group of Russians working for a Russian company were charged recently with corporate espionage after they were found hacking into the databases of American companies in New York and Washington, D.C. A few years back a group of Russians working for an American company committed the same crime against Russian businesses in Moscow and St. Petersburg; they were convicted and sent to jail.
Just as preparations for a trial began, the U.S. and Russian governments arranged a deal whereby the group in American would be sent to Russia, and vice versa, and everyone would live freely, away from jail or further prosecution. Sounds fishy, right?
While this scenario never happened, something very close to it did if we take the “corporate” out of “corporate espionage,” replace “hacking” with “going to parties,” and look at the spy swap that occurred after charges were brought against the group of Russia spies.
What are we to make of the fact that regular, official espionage (as opposed to the corporate kind) exists almost entirely apart from domestic and international law? Why is this the case?
Countries work together regularly to spy on certain groups and do so in conjunction with local law enforcement officials. But often countries don’t have such local support and break domestic laws by spying: laws against theft, laws that protect privacy, etc. And this occurs even between friendly nations.
Among the big things that states do to each other (e.g. trade, war, etc.), spying is marked by the dearth of international law surrounding its practice. This is interesting since state sovereignty, the lodestone of international law, clashes with espionage so directly. Espionage is somewhat of a hot coal for international law. If the international law-making community addressed intelligence in serious accordance with its founding principles, it would have to curtail it to a degree opposed by most countries, and certainly most powerful countries. States don’t want to hamper their quest for information and influence. The result is either no discussion, or platitudes that everyone ignores. In short: no international law.
In domestic contexts, most spies work out of embassies and have diplomatic immunity. Since these people, American, Russian, or otherwise, are doing the bidding of their governments, if and when they are ever expelled from the country in which they spy, they will face no persecution. No domestic law either.
If spies are unregistered, like the recent group of Russian socialite spies, they are then subject to criminal punishment, but as we’ve seen, even these laws are flexible, especially in the context of a spy exchange.
The only espionage the rule of law seems to touch at all is spying against one’s own government. If you do that crime, you will do the time. Unless, of course, you get “swapped” at some point down the road.
In the end, spying is usually illegal where it happens. But, since the world is still a dangerous place, spying will go on, as it should. And it will continue to exist in a bubble apart from the rule of law. We can’t have both spying and a comprehensive, thick conception of the rule of law. I choose spying between the two, even considered from a neutral, non-American perspective. But others may disagree.
-Jake
Related posts:
- The morality of espionage
- Should snooping for gossip be illegal?
- William James on war
- How soccer explains the world
- Assassination!
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